Missouri & North Arkansas Railroad v. Johnson

Smith, J., (after stating the facts). (1) We will not reverse the judgment because of the insufficiency of the evidence, for, as we view this evidence, it is not physically impossible that appellee was injured as the result of stepping into an unblocked frog, although it is highly improbable that the injury was caused in that manner. (2) Appellee’s statement is corroborated by the witnesses whose depositions were taken, and the decision of this case turns upon the admissibility of those depositions. It is urged that appellant waived all right to object to these depositions because no exceptions were filed before the beginning of the trial. Section 3191 of Kirby’s Digest provides that “no exception, other than to the competency of .the witness, or to' the relevancy or competency of the testimony, shall be regarded, unless filed and noted on the record before the commencement of the trial. ’ ’ But we think that section has no application here, for the reason that these depositions were taken for use in a trial in the Yan Burén Circuit Court, and no opportunity to file exceptions was ever afforded, as a nonsuit was taken before that court convened. (3) Appellee says the depositions were admissible in evidence because they were taken in another action between the same parties where the same subject-matter was involved. But they never became depositions in that case, for before any exceptions could be filed to them, the nonsuit was taken, after which there was no suit pending, and the depositions could not have 'been, and were never, offered in evidence in that case. It is conceded that the statute was not complied with by the officer who took the depositions in their transmission to the clerk of the Van Burén Circuit Court. Section 3186 of Kirby’s Digest provides that, when the depositions are completed, they shall be sealed up by the officer taking them, and directed to the clerk of the court in which the action is pending, with a note showing them to be depositions and the style of the case in which they were taken, and either delivered to the clerk or mailed to him by the officer taking them. The section contains certain exceptions which have no application here. (4) In the case of St. Louis, 1. M. & S. Ry. Co. v. Webster, 99 Ark. 265, there is an extended discussion of the interpretation to be given our statute in regard to the manner of taking and transmitting depositions. In that case the statute had not been complied with in regard to signing the depositions, nor in their transmission. At the trial in the Court below, evidence was offered to the effect that there was an agreement between the attorneys at the taking of the depositions, in addition to the agreement recited in the stipulation which accompanied the depositions. This stipulation was to the effect that “all objections and exceptions to any part of direct or cross examination may be made and submitted to the court when the deposition is offered.” In the opinion it was said that this stipulation did not cover the question as to formalities in the taking or transmission of the deposition, and that no rule of evidence was violated in permitting proof of an oral agreement in regard to the taking and transmission of the deposition, because such an agreement did not vary, contradict or enlarge the written agreement, which covered another subject. There was an extended discussion of the subject in a dissenting opinion in that case, but in both the majority and the dissenting opinions, the provision of the statute in regard to the taking and transmission of depositions was treated as mandatory unless waived, although it was not expressly held to be mandatory, and the point of difference between the judges was whether there was proper proof of a waiver. In the case at bar, there is no proof of any waiver except that recited in the notary’s certificate, which does not relate to the transmission of the depositions. One purpose of the above section is to prevent any possibility of alteration, and where that section has not been complied with or waived, the showing must be made that this purpose has not been defeated. It is urged that this showing was made by appellee’s attorneys and the officer who took the •depositions, who testified that no change had been made. But, as has been said, these purported depositions were not properly transmitted; therefore, they were prima facie inadmissible in evidence, .and they never became depositions in fact, because, before any question could be raised, or any showing made, touching their verity, the nonsuit was taken .and the whole proceeding was at an ■end. The decision of those questions, which would have determined whether the purported depositions were, in fact, admissible in evidence, ¡should have been made in the Van Burén Circuit Court, ¡and that court was never afforded an opportunity to pass upon those questions'. The certificate of the notary recites ‘ ‘ that by consent of counsel on both sides the signatures of the witnesses were expressly waived, and their testimony was, by express agreement, taken by me in shorthand and afterward transcribed on the typewriter; that all objections of any and all testimony were reserved to be interposed at the trial of said cause, and all objections and exceptions as to the manner and form of taking were expressly waived.” (5) We think the agreement recited in this' certificate does not relate-to the transmission of depositions, and would not constitute a waiver where the provisions of section 3186 of Kirby’s Digest apply, and that a party to such an agreement will not be held to have assented that the depositions, when transcribed, be delivered to some attorney instead of being transmitted to the clerk of the court in which they are to be used. (6) We think it improper for the court to have permitted the introduction in evidence of the original complaint filed in the Van Burén Circuit Court in the absence of some showing of permission to withdraw that pleading from the files of that court. A similar question was involved in the case of Ellis v. Mills (Ga.), 27 S. E. 740, in which a judgment was reversed because the trial court permitted the introduction in evidence of the original of a written pleading filed in another court; and while we are not called upon to approve all that was there said, we think this a proper occasion to condemn the practice of withdrawing the pleadings of one court for use in another, particularly where no showing is made of authority therefor granted by the presiding judge. For the error committed in the admission of the depositions, the judgment of the court below will be reversed and the cause remanded for a new trial.